VII. INTERNATIONAL LAW AND JUSTICE

The armed forces and militias involved in the Ituri conflict have been responsible for serious violations of international humanitarian law, also known as the laws of war. The individuals and armed groups that have carried out massacres, murders, rapes, inhumane acts such as cannibalism, and other crimes in Ituri must bear primary responsibility for them. But armed forces and political movements under the control of governments, namely Uganda, Rwanda, and the DRC, are also responsible for having provided military and other support to local groups with abysmal human rights records. Apart from a few exceptional cases where Ugandan or Congolese soldiers have intervened to halt abuses, the government forces have not restrained the armed groups over which they exercise control. Uganda bears particular responsibility among the governments for having fuelled ethnic violence between the Hema and the Lendu for its own immediate interests. Ugandan soldiers have themselves committed numerous violations of international humanitarian law in Ituri since 1999.

International Humanitarian LawUnder the 1949 Geneva Conventions, the ongoing war in the DRC, including in Ituri, is an international armed conflict that intersects with several internal conflicts. International armed conflicts, defined as those occurring between states, are regulated by the 1949 Geneva Conventions, the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I), and customary international humanitarian law. Internal armed conflicts are those arising within the territory of a state party to the Geneva Conventions and are covered by article 3 common to the 1949 Geneva Conventions and the Second Additional Protocol of 1977 to the Geneva Conventions (Protocol II), as well as by much customary law applicable to international conflicts. The DRC ratified the 1949 Geneva Conventions in 1961 and Protocol I in 1982. Uganda ratified the Geneva Conventions in 1964, and Protocols I and II in 1991.

Common Article 3 to the Geneva Conventions expressly binds all parties to an internal conflict, including non-state armed groups, such as Lendu militias, Ngiti militias, and UPC/Hema militias, although they do not have the legal capacity to sign the Geneva Conventions. Common Article 3 requires the humane treatment of civilians and captured combatants and prohibits violence to life and person, particularly murder, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court.238 Customary international humanitarian law also prohibits armed groups from directly attacking civilians or carrying out attacks that have a disproportionate or indiscriminate effect on the civilian population.

In violation of Common Article 3, the various armed political groups and militias, including the RCD-ML, MLC, RCD-N, UPC/Hema militias, Lendu militias, and Ngiti militias, have committed deliberate killings of unarmed civilians on a mass scale. They have also carried out summary killings of captured combatants, torture and arbitrary arrests, rape and other direct assaults. Some forces have also engaged in cannibalism and deliberate mutilation of corpses. Although in some cases the alleged perpetrators have been identified, those responsible for countless atrocities in Ituri have not been brought to justice. This culture of impunity has further fuelled the cycle of violence.

Where Ugandan forces exercised control or authority over the civilian population in the DRC, they were bound by provisions of the Fourth Geneva Convention that apply to occupied territories.239 Military commanders on the spot must respect the fundamental rights of the civilian population.240 Specifically prohibited are physical and moral coercion against civilians and captured combatants (article 31), corporal punishment and torture (article 32), and collective punishment, pillage and reprisals (article 33). Women shall be especially protected against any attack, in particular against rape, enforced prostitution, or any form of indecent assault. Everyone shall be treated with the same consideration by the occupying power without any adverse distinction based, in particular, on race, religion or political opinion. Private property may not be confiscated.241 Ugandan soldiers deployed in Ituri at times engaged in one or several of these prohibited actions, such as the deliberate killing of civilians during the attack on the governor's residence and surrounding areas in Bunia in early August 2002.

Under international humanitarian law, an occupying power has a duty to restore and ensure public order and safety in the territory under its authority. It is responsible for protecting the population, including minority group members, from violence and reprisals by third parties, such as armed groups.242 During the period of occupation by Uganda, this placed a duty on their armed forces to restore and ensure public order in such places as Bunia, Nyakunde, Mongbwalu, and Drodro. In countless cases, the Uganda army was in breach of its responsibilities under the Geneva Conventions by not defending vulnerable populations, both Hema and Lendu, in areas under its control.

Uganda also has the responsibility under international humanitarian law to prevent violations of international humanitarian law by forces over which it exercises effective control. The International Court of Justice has ruled that a foreign state is responsible for the conduct of a faction in a civil war if the faction is a de facto agent of the foreign state or the foreign state otherwise orders it to commit certain acts.243 The Ugandan authorities have had a close relationship at different times with the UPC forces and Hema militias and with Lendu militias and others from the former FIPI coalition, having armed and trained these groups. Uganda violated international humanitarian law by not using its influence to stop gross violations of human rights by these groups.

Ituri is a humanitarian catastrophe: over 500,000 people have been displaced from their homes and large segments of the population at risk do not have access to humanitarian assistance.244 Under the Geneva Conventions, Uganda was responsible for providing secure and unimpeded access for humanitarian agencies to vulnerable populations and for respecting their independence and impartiality. Humanitarian personnel were also to be respected and protected. Uganda had a special responsibility as an occupying power to maintain hospitals and other medical services "to the fullest extent of the means available to it"245 which includes protecting civilian hospitals, medical personnel, and the wounded and sick. Uganda violated their international obligations by allowing humanitarian agencies to be blocked in Bunia for over six months in 2002 without reviewing the restriction or exerting influence to open up access to areas where civilians were in desperate need. As a result, thousands are believed to have died from lack of access to humanitarian assistance.

International Criminal Court The DRC government ratified the Statute of the International Criminal Court (ICC) on March 30, 2002246 and its cabinet drafted implementing legislation in June and October 2002, though this has still not been sent to parliament. The draft legislation incorporates into domestic law all the ICC crimes and provides for full cooperation between the ICC Prosecutor and Congolese judicial authorities.

With the ratification of the ICC Statute, any crime of genocide, crimes against humanity or war crimes247 committed after July 1, 2002 on any part of DRC territory or anywhere by Congolese nationals may be subject to ICC prosecution, if the DRC government is unable or unwilling to prosecute such cases itself.

It is highly likely that crimes committed in Ituri after July 1, 2002, will be subject to ICC jurisdiction. The Kinshasa government does not yet have full control over Ituri and is not able to exercise judicial functions in the territory. Any trials within the DRC for crimes committed in Ituri after July 1, 2002 will not prevent the exercise of ICC jurisdiction if the trials are shown to have been organized for political reasons and without regard to due process.

238 Geneva Conventions of August 12, 1949.

239 Under international humanitarian law, an occupying power takes on the role as a transitional administrator of a sovereign territory. As such, it is not entitled to change the legal status of the territory, a principle that Uganda has violated by creating the province of Ituri.

247 International humanitarian law has historically restricted use of the term "war crimes" to international armed conflicts. Much of the conflict in Ituri is considered a non-international (internal) armed conflict. Increasingly, serious violations of international humanitarian law committed in non-international armed conflicts have been recognized as war crimes, such as under the Rome Statute of the International Criminal Court.